Angela Chen v. Wai Wai Chen

HCAP 10/2020

[2024] HKCFI 60

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 10 OF 2020

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BETWEEN

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D E C I S I O N

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A. INTRODUCTION[1]

1.This is the hearing of the summons dated 14 August 2023 (“Summons”) taken out by the defendant (“Vivien”) against the plaintiff (“Angela”) for further and better particulars (“FBP”) in respect of the RARDCC.

2.In very broad terms, Angela commenced the present probate action to propound the will of Madam Yang Foo-Oi (“Mother”) dated 15 February 2008 (“2008 Will”).  Angela is the sole beneficiary and the sole executrix appointed under the 2008 Will.

3.Vivien is the other daughter.  Vivien challenges the validity of the 2008 Will on the grounds of (i) lack of testamentary capacity; (ii) no knowledge and approval; and (iii) that the 2008 Will was procured by undue influence and/or fraud/fraudulent calumny on the part of Angela.

4.The requests made under the Summons relate specifically to the plea in §164C.5(ii) and §164H.3 of the RARDCC by Angela that over the years, the gifts made by Father to Vivien were not equal to and were more valuable than the gifts made by Father to Angela.

B.  RELEVANT LEGAL PRINCIPLES

5.Order 18, rule 12 of the Rules of the High Court, Cap 4A (“RHC”) provides as follows:

“(1) Subject to paragraph (2), every pleading must contain the necessary particulars of any claim, defence or other matter pleaded…

…

(3) The Court may order a party to serve on any other party particulars of any claim, defence or other matter stated in his pleading…, and the order may be made on such terms as the Court thinks just.

…

(3B)  No order shall be made under paragraph (3) unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.”

6.It is trite that pleadings should enable the other side to know with what evidence they ought to prepare for trial: Well Joint Trading Ltd v Chiu Chung Chiu,HCA 1768/2011 (unrep, 9/07/2012) per DHCJ Au-Yeung (as she then was) §§14-17.  At §15, her Ladyship sets out the functions of particulars as follows:

“(1) inform the other side of the nature of the case they have to meet as distinguished from the mode in which that case is to be proved;

(2) prevent the other side from being taken by surprise at the trial;

(3) enable the other side to know what evidence they ought to be prepared with and to prepare for trial;

(4) limit the generality of the pleadings, the claim and the evidence;

(5) limit and define the issues to be tried, and as to which discovery is required; and

(6)  tie the hands of the party so that he cannot without leave go into any matters not included (although if the opponent omits to ask for particulars, evidence may be given which supports any material allegation in the pleadings).”

7.In McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775, at 792j-793b, Lord Woolf MR (as he then was) said that the need for extensive pleadings including particulars should be reduced by the requirement that witness statements would be exchanged.  He stated that:

“The need for extensive pleadings including particulars should be reduced by the requirement that witness statements are now exchanged. In the majority of proceedings identification of the documents upon which a party relies, together with copies of that party’s witness statements, will make the detail of the nature of the case the other side has to meet obvious. This reduces the need for particulars in order to avoid being taken by surprise. This does not mean that pleadings are now superfluous. Pleadings are still required to mark out the parameters of the case that is being advanced by each party. In particular they are still critical to identify the issues and the extent of the disputes between the parties. What is important is that the pleadings should make clear the general nature of the case of the pleader. This is true both under the old rules and the new rules…” (Emphasis supplied)

8.However, in my view, the reliance on witness statements to define a party’s case should not be overemphasised as the Court of Final Appeal has reminded us that it is the pleadings that will define the issues in a trial and dictate the course of proceedings both before and at trial. Where witnesses are involved, it will be the pleaded issues that define the scope of the evidence, and not the other way round, see Practice Note 18/0/3 of the Hong Kong Civil Procedure 2024.

C.  DISCUSSION

9.At §125 of the ADCC, Vivien pleads that Mother had become subject to the overwhelming and domineering influence of Angela, and was confused in her mind by the “Mistaken Beliefs” (as defined) including, inter alia, (c) that “Vivien had received more valuable assets than Angela from Father’s distribution of wealth”.

10.This plea of “Mistaken Beliefs” is relied on by Vivien in support of her plea of lack of testamentary capacity (§90A of the ADCC); want of knowledge and approval (§121A of the ADCC); undue influence (§123 of the ADCC); as well as fraud (§134I of the ADCC).

11.As part of her answers to Vivien’s case based on the “Mistaken Beliefs”, Angela has pleaded the following at the targeted paragraphs of the RARDCC:

(1)  §164C.5(ii)

“The alleged belief under (c) was not mistaken. Over the years, the gifts or distribution made by Father to Vivien were not equal to, and were more valuable than, the gifts made by Father to Angela.” (Emphasis added)

(2)  §164H.3

“As to paragraph 134D(4), the burden is on Vivien to prove that Mother was induced by misrepresentation made by Angela in making the 2008 Will. In the ADCC Vivien has (i) failed to give particulars of the alleged representation by Angela, (ii) failed to plead proper facts to show that alleged representation was untrue, (iii) failed to plead proper facts to show that Angela made the representation knowing the same to be untrue or was reckless as to its truth, (iv) failed to plead proper facts to show that Mother was induced by the alleged misrepresentation in making the Will and (v) failed to plead proper facts to support the allegation that Angela made the alleged representations so that Mother would be induced to alter her Will in Angela’s favour. For the avoidance of doubt, each of the afore-mentioned allegations by Vivien (to the extent she has made them) is denied. If and insofar as it is Vivien’s case that she did not obtain more assets than Angela, and that this is relevant to Vivien’s case on misrepresentation, then it is for Vivien so to allege and prove. The relevance of paragraph 134D(4) is denied. Without prejudice to the aforesaid, it is Angela’s case that Vivien did in fact receive more assets from Father over the years.” (Emphasis added)

12.In my view, Angela has clearly in the 2 targeted paragraphs pleaded a positive case: that Vivien did in fact receive more assets from Father over the years.  Angela relies on this to say that the “Mistaken Beliefs” were not incorrect, and she could not have known that the “Mistaken Beliefs” were incorrect when in fact they were true.

13.Mr Yu, SC for Angela in resisting the Summons submits that Angela’s plea of a positive case is merely reactive to Vivien’s allegation of the “Mistaken Beliefs”.  He goes on to submit that Vivien’s plea at ADCC §125(c) did not identify the period of time covered, nor itemise what assets or gifts are covered by this alleged belief by Mother.  In other words, any perceived ambiguity in Angela’s case comes from Vivien’s own formulation.  Vivien should not be asking Angela for particulars to clarify her (Vivien’s) own plea.

14.I do not agree with this approach.  Angela in §164C.5(ii) and §164H.3 of the RARDCC has clearly pleaded a positive case.  She did not have to, but she has chosen to do so.  This is best illustrated by the terms of §164H.3 (set out at paragraph 11 above).  Save for the last sentence of that paragraph, Angela has simply attacked Vivien’s case. But in the last sentence, Angela has clearly chosen to set up a positive case of her own.

15.The question for determination by this court is whether the targeted paragraphs are sufficient to mark out the parameters of the case that is being advanced by Angela.

C1.  Items 1 and 3 of the Requests

16.These requests basically ask what is Angela’s case as to the beginning date of the period of time described by the phrase “over the years”.

17.In short, Vivien complains that Angela has failed to sufficiently particularise the temporal period which she is referring to.  Whilst she has provided an end date, being “up to the point in time when Mother made the 2008 Will” (Answers dated 30 June 2023, §32(b)), she does not provide the beginning date, thus effectively leaving the temporal period open-ended and wholly undefined.

18.Vivien submits it is embarrassing to define the time period covered by the phrase “over the years” only by the end date but not the beginning date.  The allegation may be true if one particular beginning date is chosen but untrue if another date is chosen.  It is simply impossible for Vivien to respond to this allegation without knowing which period of time is relevant to Angela’s positive cases of inequality.

19.I agree.  The problem is highlighted by the way Angela has put her case in §18.3 of her Skeleton Submissions:

“18.3 Indeed, from Vivien’s proposed Amended Rejoinder §§5.3 & 15.2 …, where it is pleaded that (on Vivien’s case) the ‘Equality Principle’ only applied to gifts prospectively from 1 January 2003 and not to gifts prior to that date, it is readily apparent that Vivien did receive more gifts or assets from Father before that date.”

20.If Angela is relying on unequal distribution or gifts of assets “before that date” (ie before 1 January 2003), it is imperative for Angela to specify the period “before that date”, that is, how much longer before that date.

C2.  Item 4 of the Requests

21.This asks Angela to clarify whether the plea of “Vivien did in fact receive more assets from Father over the years” in RARDCC §164H.3 is intended to convey the same meaning or effect as the plea of “Over the years, the gifts or distribution made by Father to Vivien were not equal to, and were more valuable than, the gifts made by Father to Angela” in RARDCC §164C.5(ii).

22.I agree with Angela that this request is unnecessary.  Clearly, “more assets” in the context must mean assets which are “more valuable”, as opposed to more items of assets.

23.Indeed, in §21 of Angela’s Skeleton Submissions, Angela has confirmed that the meaning of these two pleas is clearly the same.

24.Further, as pointed out by Angela, Vivien did not make this request by correspondence prior to the issue of the Summons, which would have been met with the same response above, effectively answering it.  I agree that the request should be disallowed by reason of Order 18, rule 12(6) RHC, which provides that:

“Where the applicant for an order under this rule did not apply by letter for the particulars he requires, the Court may refuse to make the order unless of opinion that there were sufficient reasons for an application by letter not having been made.”

C3.  Items 2 and 5 of the Requests

25.Items 2 and 5 of the Requests are drafted in similar terms.  They asked for particulars of “gifts”/“distribution”/“assets” made by Father to respectively Vivien and Angela over the years, “other than those referred to in Answer 24(c)(i) to (iv) of the Answers [dated 30 June 2023]”.

26.Vivien contends that whilst Angela has identified 4 classes/bases in Answer 24(c)(i) to (iv), she qualifies the same by saying that these are “non-exhaustive facts and matters”.  Angela alleges that this is “due to the clandestine manner in which Vivien obtained gifts from Father over the years, pending discovery and interrogatories, Angela is unable to plead the full particulars of the assets that Vivien received from Father”.

27.Vivien further submits that even if Angela cannot provide detailed particulars, she should at least provide such description of their nature as is reasonably sufficient to allow Vivien to identify the same, rather than asserting that such list is “non-exhaustive”.

28.I do not agree with Vivien’s position.  As mentioned above, Angela has stated that she is unable to plead the full particulars of the assets that Vivien received from Father pending discovery and interrogatories.  In the context, the reference to “non-exhaustive facts and matters” simply means there may be further facts and matters that may arise from discovery and interrogatories, it does not mean that there are further facts and matters currently known to Angela.

C4.  Item 6 of the Requests

29.Mr Mok, SC for Vivien has confirmed during the hearing that Vivien no longer pursues this item of request for FBP.

D.  CONCLUSION

30.For the reasons set out above, I order that the plaintiff do, within 14 days, provide her answers to items 1 and 3 of the defendant’s request for further and better particulars sought in the Annex to the Summons.

31.I further order that the remainder of the Summons be dismissed.

32.Each party has been partially successful on the Summons.  In the circumstances, I order that each party shall bear her own costs of and occasioned by the Summons.

33.The above order as to costs is nisi and shall become absolute in the absence of any application within 14 days to vary the same.

34.Lastly, I express my gratitude to counsel on both sides for their helpful assistance in this matter.

Mr Benjamin Yu, SC, leading Mr Keith Lam, instructed by Messrs DLA Piper Hong Kong, for the plaintiff

Mr Johnny Mok, SC, and Mr Johnny Ma, SC, leading Mr Tom Ng, instructed by Messrs Anthony Siu & Co, for the defendant